Jul 11, 2019

How the Supreme Court has stirred the populist pot

Anti-abortion protest, 2016. Drew Angerer/Getty

In an age of profound mistrust, few matters stir greater hope, satisfaction and fury among Americans than the Supreme Court and its often-decisive role as the last word across a vast number of divisive issues.

What's happening: Scholars, analysts and observers are struggling to understand the sudden populist challenge to the status quo. So it is odd that little attention has been paid to the court as a primary force in the country's often-apoplectic anger.

In a remarkable series of cases spanning more than six decades, the court and other federal judicial bodies have fundamentally altered how we speak to each other, how we vote and elect our leaders, and how we stay safe. They also may have helped to deepen political polarization.

  • In the most recent substantial case, the justices last month prohibited legal challenges to partisan gerrymandering. Critics say the decision may lead to a free-for-all in which parties in power will disenfranchise thousands of voters by drawing congressional district lines to favor themselves.
  • "It's not individual cases but this role of the Supreme Court in American life that contributes to polarization. It decides so many questions. It's become a political hotbed," said Adam Winkler, a constitutional law professor at UCLA.
  • "The Supreme Court has changed society. It's changed freedom of religion, of speech, abortion, criminal justice, property rights," said Ilya Somin, a leading libertarian law professor at George Mason University.

One marker for the court's modern, transformational age is Brown vs. Board of Education, which in 1954 upended racial segregation in schools, and over the subsequent decades roiled American society. The decision came under Chief Justice Earl Warren, who championed an activist court that sought to correct societal flaws that it said otherwise were going untended.

But the last three decades have been a court counter-revolution: Warren and his successor, Chief Justice Warren Burger, rankled conservatives, said Winkler. As president, Richard Nixon vilified court decisions expanding the rights of prisoners, and Ronald Reagan vowed to appoint only justices who would overturn Roe vs. Wade, which legalized abortion.

  • Over the last decade, the court — with an originalist tilt favoring a strict reading of the constitution — has broadened the right to own guns (2008), opened up the campaign funding spigot from corporations (2010), and invalidated part of the landmark 1965 Voting Rights Act (2013).
  • These cases and those before helped to shape the political surroundings in which the topsy-turvy half-century of politics have occurred, culminating in today's popular distrust of institutions and rejection of experts.

While the court has both fed and stoked political anger, constitutional law experts said the sources of polarization are many, and that it is difficult to pick out any one reason for the divided country.

  • "If you ask me, Fox News has had a greater effect on polarization than the Supreme Court," said Winkler, the UCLA professor.
  • Yet, it was an administrative law body — the Federal Communications Commission — that opened the way for hyper-partisan news. In 1987, the FCC overturned the Fairness Doctrine, lifting the requirement for TV news shows to be balanced, says Michael Gerhardt, a professor at the University of North Carolina.

What's next: The court is poised to drop some political bombshells in the 2020 election campaign, writes Axios' Sam Baker. At the top of its list may be abortion, guns and immigration — among the most inflammatory issues in the country.

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Former Supreme Court Justice John Paul Stevens has died

Former Associate Justice of the Supreme Court John Paul Stevens, sitting for a portrait in Fort Lauderdale, Florida, in May. Photo: Scott McIntyre/for The Washington Post via Getty Images

Former Supreme Court Justice John Paul Stevens has died, ABC News first reported Tuesday. He was 99.

"Retired Associate Justice of the Supreme Court of the United States, John Paul Stevens, died this evening at Holy Cross Hospital in Ft. Lauderdale, Florida, of complications following a stroke he suffered on July 15. He passed away peacefully with his daughters by his side."
— Supreme Court statement
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In photos: John Paul Stevens lies in repose at the Supreme Court

Associate Justice Sonia Sotomayor, Associate Justice Samuel Alito, Associate Justice Ruth Bader Ginsburg and Chief Justice John Roberts participate in a moment of silence. Photo: Andrew Harnik/Pool/Getty Images

Former Supreme Court Justice John Paul Stevens, who died last week at age 99, lied in repose at the court's building in Washington on Monday, prompting visits from the current justices, more than 80 of his former clerks, and President Trump and first lady Melania Trump.

Details: Stevens was the 3rd-longest-serving member of the Supreme Court before his 2010 retirement. He will be buried in Arlington National Cemetery in a private ceremony.

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Where abortion restrictions stand: The states that have passed laws

Anti-abortion protest. Photo: SAUL LOEB/Getty Images

The most restrictive abortion laws in generations are being challenged in courts across America's red states, setting up what could be a precedent-smashing Supreme Court challenge to the abortion status quo.

Driving the news: Mississippi's fetal heartbeat law was struck down on Friday, after the 5th U.S. Circuit Court of Appeals ruled that the 15-week abortion ban was unconstitutional, per AP. The Center for Reproductive Rights, who challenged the ban in court, called the ruling "the first of the recent bans to reach a federal appellate court."

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